School Dist. of City of Dearborn v. Labor Mediation Bd., Docket No. 6550

• Decision Date: 26 February 1970
• Docket Number: No. 1,Docket No. 6550,1
• Citation: 22 Mich.App. 222,177 N.W.2d 196
• Parties: , 73 L.R.R.M. (BNA) 2787, 63 Lab.Cas. P 52,321 SCHOOL DISTRICT OF the CITY OF DEARBORN, Plaintiff-Appellant, v. LABOR MEDIATION BOARD of the State of Michigan, Defendant-Appellee, and Dearborn Schools Operating Engineers Association, Intervenor-Appellee
• Court: Court of Appeal of Michigan — District of US

Page 196

177 N.W.2d 196

22 Mich.App. 222, 73 L.R.R.M. (BNA) 2787,

63 Lab.Cas. P 52,321

SCHOOL DISTRICT OF the CITY OF DEARBORN, Plaintiff-Appellant, v. LABOR MEDIATION BOARD of the State of Michigan, Defendant-Appellee and Dearborn Schools Operating Engineers Association, Intervenor-Appellee.

Docket No. 6550.

Court of Appeals of Michigan, Division No. 1.

Feb. 26, 1970.

Released for Publication June 4, 1970.

Allen Schwartz, Miller, Canfield, Paddock & Stone, Detroit, for plaintiff-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Solicitor Gen., Grancis W. Edwards, Asst. Atty. Gen., for Labor Mediation Board.

Harold M. Provizer, Provizer & Eisenberg, Southfield, for Dearborn Schools Employees Independent Union.

Donald F. Sugerman, Sharples, Klein, Meizlish & Sugerman, Detroit, for Dearborn Schools Operating Engineers Association.

Before LESINSKI, C.J., and LEVIN and DANHOF, JJ.

DANHOF, Judge.

On May 3, 1968 Dearborn Schools Operating Engineers Association petitioned the Michigan Labor Mediation Board for an election of a bargaining agent in a unit of employees of the School District of the City of Dearborn. The bargaining unit was described in the petition as 'all operating engineers, excluding all other maintenance, operational, clerical, transportation, and cafeteria employees, secretarial and office personnel, supervisory and teaching employees.'

On October 31, 1968 the Michigan Labor Mediation Board (hereinafter referred to as MLMB) directed the election to be held and designated the bargaining unit as 'all engineers and assistant engineers classified by the employer as engineer A, B, C, D, or E, EXCLUDING all other supervisors, teaching personnel and all other employees.' On November 19, 1968 leave to appeal was filed in this Court by the plaintiff, School District of the City of Dearborn, and on March 4, 1969 we entered an order granting the application for leave to appeal.

In its opinion of October 31, 1968 the MLMB made certain findings of facts which have been accepted by the parties, and in addition, are supported on the whole record by competent material and substantial evidence. There facts are:

(1) The plaintiff, School District of the City of Dearborn is a public employer within the meaning of P.A.1967, No. 336 as amended by P.A.1965, No. 379 (Public Employment Relations Act (hereinafter referred to as PERA), M.C.L.A. § 423.201 et seq. (Stat.Ann.1968 Rev. § 17.455(1) et seq.);

(2) That the engineers and assistant engineers are public employees within the provisions of § 2, PERA, M.C.L.A. § 423.202 (Stat.Ann.1968 Rev. § 17.455(2));

(3) That the engineers and assistant engineers are supervisors;

(4) That the Dearborn Schools Operating Engineers Association is a labor organization within the provisions of § 12, PERA, M.C.L.A. § 423.212 (Stat.Ann.1968 Rev. § 17.455(12)) and § 9, PERA, M.C.L.A. § 423.209 (Stat.Ann.1968 Rev. § 17.455(9)).

This Court is bound by the facts as they were determined by the MLMB.

The issue presented in this appeal is whether under the provisions of PERA, supervisors (the engineers and assistant engineers) who are public employees constitute a proper collective bargaining unit and are entitled to be represented by representatives of their own choosing.

It is clear that one of the purposes of PERA is 'to declare and protect the rights and privileges of public employees * * *' (Preamble to the PERA). This policy has been effectuated by permitting public employees to engage in collective bargaining. M.C.L.A. § 423.209 (Stat.Ann.1968 Rev. § 17.455(9) states:

'It shall be lawful for public employees to organize together or to form, join or assist in labor organizations, to engage in lawful concerted activities for the purpose of collective negotiation or bargaining or other mutual aid and protection, or to negotiate or bargain collectively with their public employers through representatives of their own free choice.'

The legislature designated the MLMB as the agency to determine the appropriate bargaining units, M.C.L.A. § 423.213 (Stat.Ann.1968 Rev. § 17.455(13)). The determination of the bargaining unit is based upon criteria set forth in P.A.1939, No. 176, § 9e as last amended by P.A.1965, No. 282, M.C.L.A. § 423.9e (Stat.Ann.1968 Rev. § 17.454(10.4)). This section is a part of the Michigan Labor Mediation Act (hereinafter referred to as MLMA), M.C.L.A. § 423.1 et seq. (Stat.Ann.1968 Rev. § 17.454(1) et seq.) and states:

'Sec. 9e The board, after consultation with the parties, shall determine such a bargaining unit as will best secure to the employees their right of collective bargaining. The unit shall be either the employees of 1 employer employed in 1 plant or business enterprise within this state, not holding executive or supervisory positions, or a craft unit, or a plant unit, or a subdivision of any of the foregoing units: Provided, however, That if the group of employees involved in the dispute has been recognized by the employer or identified by certification, contract or past practice, as a unit for collective bargaining, the board may adopt such unit.'

Plaintiff and defendants disagree as to the correct interpretation of § 9e. Plaintiff argues that PERA when read in conjunction with this section and with other sections of the MLMA prohibits supervisory personnel of public employees from organizing and bargaining collectively. Defendants maintain that § 9e, cannot be read so as to prohibit supervisors from constituting a bargaining unit and from electing a bargaining representative.

An examination of the structure of § 9e shows that there are 4 choices of bargaining units: (1) a unit consisting of all of the employees employed in one plant or business enterprise within the state, (2) a craft unit, (3) a plant unit, and (4) a subdivision of any of the foregoing units.

The language in § 9e to which plaintiff points, '* * * not holding executive or supervisory positions, * * *' is a modification of only the first type of unit listed. It does not modify the remaining units defined, nor is it in and of itself a prohibition against executive or supervisory employees constituting a bargaining unit. Defendants correctly point out that those employees in private employment who are employed as executives or supervisors are not afforded the protections of MLMA, but this exclusion of executives or supervisors is not because of the provisions of § 9e, but rather, because of § 2 of MLMA, M.C.L.A. § 423.2(e) (Stat.Ann.1968 Rev. § 17.454(2)(e)). This section defines an 'employee' under MLMA, but it expressly states that an employee under MLMA shall not be '* * * any individual employed as an executive or supervisor, * * *' In this regard it is interesting to note that § 9e of MLMA, M.C.L.A. § 423.9e (Stat.Ann.1968 Rev. § 17.454(10.4)) was adopted by the legislature in 1947 (P.A.1947, No. 318), whereas the definition of employee, M.C.L.A. § 423.2(e) (Stat.Ann.1968 Rev. § 17.454(2)(e)) was not adopted until 1949 (P.A.1949, No. 230). Therefore, prior to 1949 supervisors could organize in a bargaining unit, and in fact prior to 1947 could be in the same unit, in the same plant, with employees who were not supervisors. Thus, we conclude that § 9e, M.C.L.A. § 423.9e (Stat.Ann.1968 Rev. § 17.454(10.4)) does not prohibit those employees engaged in executive or supervisory...